P L D 2002 Supreme Court 42 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.--petitioner seeks leave to appeal against judgment, dated 16th May, 2000 passed- by Lahore High Court, Lahore whereby death sentence awarded to petitioner under section

302. P.P.C. by Additional Sessions Judge, Lahore on 12th March, 1997 was confirmed while accepting Murder Reference No. 124 of 1997 as a consequence whereof Criminal Appeal No.96 of 199 7 tiled by petitioner challenging his conviction/sentence has been dismissed.

2. The prosecution case as it has been unfoklcd in F.I.R. Exh.PC recorded by Nazir Ahmed complainant brother of deFeased Akram Ali is that later sold- three cassettes to the younger brother of petitioner Gulzar Ahmed but he was not satisfied on which tile complainant's father Nazir Ahmed and that he be given one more cassette. At about 1-00 a.m. (mid-night) Gulzar came to the house of the complainant arid asked Akram deceased to come out of the house. He also started hurling, abuses. The Complainant and his father returned the amour?! of 85.150 but Gulzar Ahmed did not feel satisfied arty left the place while extending threats that he wilt take revenge of his insult. On 15th August, 1995 at about 11 45 a. m: the complainant alongwith his brother Akram Ali, brother-in law Muhammad Arshad and his father Manzoor Ahmed were present in the house petitioner Gulzar alongwith one unknown young man called out Akram and when he reached at outer door of the house Gulzar Ahmed and his companion started tiring from their respective mausers hitting Akram Ali at, his chest who fell down and succumbed to the injuries instantaneously. A number of inhabitants were attracted to the place of occurrence and in the meanwhile petitioner Gulzar Ahmed and his companion.-fled away while firing from the pistols. The incident was, witnessed by complainant, his father Manzoor and brother-in law. P.W: Muhammad Yousaf, S.-I. after registration of the case recovered three empties of .30 bore mauser blood-stained earth from the place of occurrence vide recovery memo. Exh.PE. Petitioner was arrested on 27th August, 1995, who on 2nd September, 1995 led to the recovery of .30 bore mauser, which was sealed into a parcel and scored vide recovery memo. Exh.PH. Meanwhile, co-accused Sajjad Ahmed was also arrested.

3. Learned trial Court read over charge to both the accused under section 302(b), P.P.C. but they did not plead guilty as such to substantiate accusation prosecution produced evidence. Thereafter, statements of accused facing trial were also recorded under section 342, Cr.P.C. as well as under section 340(2), Cr.P.C. Petitioner pleaded innocence and took plea of alibi. In support of said plea he also examined three defence witnesses' namely Muhammad Sarwar, Muhammad Asad and Sajjad Ahmad. On completion of proceeding learned trial Court vide judgment, dated 12th March, 1997 found petitioner guilty for the commission of the offence, as such he was awarded death sentence under section 302, P.P.C. with further direction that he will pay Rs.1,00,000 as compensation to the heirs of deceased under section 544-A, Cr.P.C. As far as co-accused is concerned he was exonerated of the charge.

4. Petitioner filed appeal before the High Court. Simultaneously trial Court also transmitted Murder Reference for confirmation or otherwise of death sentence. Both the matters have been disposed of by means of impugned judgment. As such instant petition has been filed.

5. Learned counsel appearing for the petitioner at the very outset contended that he is not challenging impugned judgment passed by Lahore High Court on merits but only requests for reduction of sentence. In support of his plea he argued that evidence furnished by defence witnesses appearing on behalf of the petitioner has" not been considered by the High Court, therefore, for such reason petitioner is entitled for lesser punishment.

6. We afraid contention put forward by learned counsel has no substance because under the law normal penalty for the offence of Qatl-i -Amd falling within the mischief of section 302(a) and (b), P.P.C. is death. However, if the Court is satisfied that lesser sentence will meet the ends of justice subject to the condition that there exists extenuating and mitigating circumstances, no leniency can be shown in awarding normal penalty of death to the convict. In number of cases it has been experienced that the Court undertakes unnecessary labour to make out a case of lesser punishment for the commission of principal offence falling within the mischief of section 302(a) and (b), P.P.C. as a result whereof serious injustice and prejudice is caused to the victim party who suffered on account of judicial pronouncement. Of course, in addition to it object of awarding normal penalty of death in murder cases is to avoid repetition of violent loss of life by awarding punishment. Reference in this behalf may be made to Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others. (PLD 1976 SC 452). However, there could be a case where mitigating or extenuating circumstances apparently exit on record depending upon the circumstances of each case. In addition to it under the Islamic principle of dispensation of criminal justice once it is established that an offence falling within the definition of Hadd is proved, no extenuating or mitigating circumstance can be pressed into service for warranting lesser punishment, however, in the cases where sentence is awarded under Ta'zir then factor of mitigating or extenuating circumstance could form a relevant consideration while imposing sentence under section 302(b), P.P.C. Admittedly, in the instant case petitioner has been awarded sentence of death as Ta'zir falling within the compass of section 302(b), P.P.C: Now question for consideration before us would be whether non-considering the defence version by the High Court is a mitigating or extenuating circumstance in favour of petitioner. First of all it is to be seen that defence witnesses have furnished evidence to the effect that petitioner was arrested during the proceedings of Khatam Sharif meaning thereby that on producing such evidence the accused intended to raise plea of alibi because he wanted to establish through these witnesses that at the time of commission of crime he was not present at the place where incident had taken place. In our opinion notwithstanding the fact whether the version of defence witnesses is considered by the High Court or otherwise the evidence so produced through these witnesses in any case would not be sufficient to constitute a mitigating or extenuating circumstance in his favour. When the prosecution has manifestly proved involvement of petitioner by producing ocular evidence, medical evidence, motive as well as confirmatory evidence to the effect that crime weapon i.e. .30 bore pistol recovered from his possession was used by him in the commission of offence because the empties secured from the place of incident have matched with it then non-consideration of defence evidence will not cause prejudice in any manner. Placing the prosecution evidence in juxtaposition with the evidence, which has been led by the defence witnesses it can conveniently be concluded that the plea of petitioner, which he intends to introduce through defence witnesses has no substance. Therefore, we feel no inhibition or hesitation in maintaining sentence of death awarded to him by the trial Court. Thus for the above discussion, we see no merit in this petition as such the same is dismissed and leave to appeal declined. N. H. Q. / J-82/S Leave refused.